Case 307-cr-00289-M Document 368 Filed 08/01/2008 Page 1 of 6 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS UNITED STATES OF AMERICA, v. DON HILL, et al., Defendants. NO. 307CR289-R ELECTRONICALLY FILED RAY JACKSON ATTORNEY FOR DEFENDANT DONALD W. HILL S RESPONSE TO DEFENDANT JIBREEL A. RASHAD S MOTION TO DISQUALIFY RAY JACKSON TO THE HONORABLE BARBARA M. G. LYNN COMES NOW the Defendant, Don Hill, by and through his attorney of record, Ray Jackson, and files this his response to Defendant Jibreel A. Rashad s Motion to Disqualify Ray Jackson from continuing his representation of Defendant Don Hill in this case and from continuing as trial counsel for any party. Facts Attorney Ray Jackson is the biological brother of Defendant Jibreel Rashad by virtue of having the same father. However, he has never been the corporate attorney for Mr. Rashad for any matter asserted as claims in this indictment. Mr. Rashad wanted to set up a couple of companies with the State of Texas and knew that Mr. Jackson would have forms to get it done. Mr. Rashad came to Mr. Jackson to help him fill out the forms need to file with the State of Texas, which Mr. Jackson did and Mr. Rashad subsequently took the forms and paid and filed the forms himself. Sometime, thereafter, Mr. Rashad came to Mr. Jackson indicating that he was attempting to get a line of credit and since he was doing business as Vernon Cooks he needed
Case 307-cr-00289-M Document 368 Filed 08/01/2008 Page 2 of 6 to put that name on his corporation articles. Mr. Jackson then provided him again with the forms to amend his articles with the State and Mr. Rashad took the forms and filed them and paid for them. Mr. Rashad never sought Mr. Jackson s advise on this matter and Mr. Jackson never gave any. Mr. Rashad never retained Mr. Jackson s services as an attorney and never paid Mr. Jackson. What Mr. Jackson did for Mr. Rashad, he did as his brother who had forms Mr. Rashad could use as it related to his corporation. Mr. Rashad shared with Mr. Jackson that he was doing construction and was attempting to get contracts for construction, but never any more detail then that. I have never known, prior to the indictment or the public investigation, any details of Mr. Rashad s business other than the generic understating that he did real estate investments and was attempting to get into construction. After the investigation began on this case and while representing Mr. Rashad on his other criminal case, Mr. Rashad shared information relating to his business in some detail as well as the fact that he was innocent in the pending matter. A. No Unfair Prejudice While Mr. Rashad did come to Mr. Jackson to provide form documents to help him file his corporation, there was never any legal advise sought other than what forms to use. If Mr. Rashad was relying on Mr. Jackson s legal advise, it was never sought or given. Mr. Jackson s knowledge of the formation of Rashad Investments, Inc., RA-MILL, and Rashad Millennium, LLC, d/b/a Ra-Mill, is simply the names on the paper. Mr. Jackson has no knowledge as to the companies themselves or their business dealings. Mr. Jackson was however listed as the registered agent and didn t mind being their agent to be able to provide notice to Mr. Rashad if needed. Mr. Jackson should not be allowed to be called as a witness for Mr. Rashad. Mr. Rashad has several close personal friends who he did business with and spent substantial time with who are far more knowledgeable about what Mr. Rashad s goals were and business plans. These people would be far better witnesses for Mr. Rashad and could testify to the same things that Mr. Jackson would be able to testify to. United States v. Manners, Case No. 305-CR-22-M, 2
Case 307-cr-00289-M Document 368 Filed 08/01/2008 Page 3 of 6 Oct. 25, 2006 (N.D. Tex) (J. Lynn) (Court rejected defendant s motion to disqualify prosecutor where other witnesses could provide the same testimony.) B. Jackson should not be Disqualified When an issue of conflict of interest arises in a criminal case, court must first determine whether an actual or potential conflict exists, and if such a conflict exists, court must ensure that the conflict is either eliminated or waived; if the conflict cannot be eliminated or waived, the attorney must be disqualified. U.S.C.A. Const. Amend. 6 Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). The party seeking disqualification of counsel in a criminal case bears the burden of proving a conflict of interest. U.S.C.A. Const. Amend. 6. In the present case, no actual or potential conflict exists that would compromise Mr. Jackson s obligation to Mr. Hill, and therefore he should not be disqualified from representation of Mr. Hill on basis of his prior representation of Mr. Rashad in a totally unrelated criminal matter. Moreover, Mr. Rashad s interests are in no way materially adverse to Mr. Hill s interests. The Sixth Amendment guarantees that in all criminal prosecutions the accused shall enjoy the right to have the Assistance of Counsel for his defense. Moreover, the right to select and be represented by one s preferred attorney is comprehended by the Sixth Amendment. Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). However, the right is not absolute the presumption in favor of a defendant s counsel of his choice may be overcome not only by a demonstration of actual conflict but by a showing of serious potential for conflict. Id. at 164, 108 S.Ct. 1692. (emphasis added). In addition, Courts in fifth circuit have also employed a substantial relationship test to guide the conflict inquiry. Under that test, [a] party seeking to disqualify counsel need not prove that the past and present matters are so similar that a lawyer s continued involvement threatens to taint the trial. Rather, the former client must demonstrate that the two matters are substantially related. U.S v. Edwards, 39 F.Supp.2d 716 at 734, (M.D.La.1999)citing In re American Airlines, Inc., 972 F.2d 605, 616 (5th Cir.1992). In this case, there is no relationship between 3
Case 307-cr-00289-M Document 368 Filed 08/01/2008 Page 4 of 6 the two representations, much less a substantial one. As a result, Mr. Jackson s allegiance to Mr. Hill is not compromised by any competing obligation owed to Mr. Rashad. Mr. Jackson s previous representations of Mr. Rashad all centered around his real estate investing which is completely different than what has been alleged in the indictment in this case even though it s Mr. Rashad s same company. Even still, in this case, Mr. Rashad s interests are not materially adverse to Mr. Hill s interests. In fact, both have maintained their innocence and neither s position is adverse to the other. Prior to the indictments for this case and before the well publicized investigation, Mr. Rashad never exchanged any confidences in our attorney client relationship or familiar relationship as it relates to any allegations contained within this indictment. I represented Mr. Rashad on a small Dallas County matter that was dismissed that had absolutely nothing to do with this case or anything alleged in the indictment. As Mr. Rashad s brother, I am sure he would mention Mr. Jackson s name when referring to his attorney, however I was not and have not ever spoken with anyone as an attorney for Ra-Mill or anything having to do with this indictment. Moreover, I was never retained to do any work or paid to do any work for Ra-Mill. In addition, I never represented Mr. Rashad on this matter and had told Mr. Rashad when the indictments were handed down that I would not and could not represent him on this case. Everything I have ever done for Mr. Rashad was for free, including the 3 months of trials in his last case and told him I could not and would not do that in this case. I was out of the country when Mr. Rashad had to turn himself in and I believe another attorney in our office, who was unable to reach me, went to the initial hearing to help Mr. Rashad secure his release from custody. This however, was done without my permission and simply as a courtesy by the other lawyer to help my brother. Mr. Rashad provides case law which is not analogous to the present case and is, in fact, clearly distinguishable in that Mr. Jackson is not attempting to represent one Co-defendant after representing another in the same case. Mr. Rashad is also mistaken about Mr. Jackson s knowledge as to the government attempting to make him into a witness. Mr. Jackson did not represent Mr. Rashad at the time of the alleged incident and Mr. Rashad was represented by Pete 4
Case 307-cr-00289-M Document 368 Filed 08/01/2008 Page 5 of 6 Thompson. Mr. Jackson was however present during Mr. Rashad s last case where Mr. Rashad turned down the Government s plea offer that included him being a cooperator in this case. This was, however, part of a proffer session. In absolutely no conversation with Mr. Rashad did he reveal confidences regarding this case that could be revealed to Mr. Hill in the present case. Mr. Rashad has maintained his innocence and has at no time revealed anything about Mr. Hill or himself that would pose a threat of a conflict in this matter. C. Hearsay Under Federal Rules of Evidence Article VIII., Rule 801, "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. As stated above, no confidences was shared that would create a conflict. As a result, the only other issue is whether Mr. Jackson would be a critical witness. As mentioned earlier, prior to the public investigation and eventual indictment, Mr. Jackson knew nothing about what and how Mr. Rashad did business. After the investigation, Mr. Rashad shared information with me about his business and his innocence, however, everything told to Mr. Jackson by Mr. Rashad pertained only to Mr. Rashad s involvement which has been and remains that he was not involved. Moreover, any statement made to Mr. Jackson would be considered hearsay and there are no exceptions that would apply. In addition, Mr. Rashad has several close associates who Mr. Jackson knows he shared the same information with who could be called to testify to the same information that Mr. Jackson could testify to. CONCLUSION Accordingly, for the foregoing reasons, Mr. Rashad s Motion to Disqualify Counsel should be denied. 5
Case 307-cr-00289-M Document 368 Filed 08/01/2008 Page 6 of 6 Respectfully submitted, THE JACKSON LAW FIRM //s// Ray Jackson Ray Jackson 2989 N. Stemmons Freeway Dallas, Texas 75247 214-651-6250 214-651-6244 Telecopier Attorney for Don Hill CERTIFICATION OF SERVICE I hereby certify that a copy of the foregoing instrument was delivered to the following All co-defendant attorneys and AUSA Electronically this 1st of August, 2008. _//s//_ray Jackson Ray Jackson Attorney for Don Hill 6